QUEEN v.WONG WO PING

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J U D G M E N T

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Hon. Yang, C.J.:

1. The case for the Prosecution depended almost entirely on the evidence of one Lau Loi-kam.

2. At about 10 p.m. on the 19th May 1989 at Lower Ngau Tau Kok Road, following a traffic dispute, two groups of armed men had a fight. The weapons consisted of iron objects including pipes, and also a plastic tubing and rocks. The usual confusion, running about and chases and skirmishes occurred. At one point of the conflict the deceased, who was himself holding a spade, was isolated from his companions, set upon by members of the opposing gang and beaten to death. It was Lau's evidence that the applicant was holding a beach umbrella shaft (Ex P28), and was one of the group of persons who killed the deceased.

3. The applicant was charged that together with other person on the 19th of May 1988 he murdered Hon Tak-pui.By unanimous verdicts of the jury, he was found not guilty of murder but guilty of manslaughter. He now applies for leave to appeal against his conviction and sentence.

Re conviction

4. Mr. McCoy seeks to challenge the conviction on five grounds: (1) that self-defence was not put to the jury by the judge; (2) that the jury was told to disregard whether Lau had been coached by the police in giving his evidence; (3) that there was a dock identification of the applicant without a prior identification parade; (4) that the applicant's previous good character was not put to the jury by the judge; and (5) that verdict was unsafe and unsatisfactory due to the unreliable and contradictory evidence of Lau Loi-kam. Another ground of appeal was added in the course of this hearing, namely, that the trial judge wrongly found that there was a case to answer, and wrongly directed himself as to the standard required for proof of a prima facie case.

5. Counsel took us through the evidence and drew our attention to the references by witnesses to the weapons carried by the deceased and his companions.It was argued that on the evidence, there might have been a need for the applicant to defend himself. We disagree. The evidence simply shows that there was a fight between two armed gangs, with one gang being on the ascendency at one time and the other gang being on the ascendency on the other. In our judgment there is nothing in the first ground of appeal.

6. The second ground of appeal, too, does not bear examination. Counsel for the applicant at the trial (not Mr. McCoy), in his final address to the jury, simply said that some of Lau's answers "may have appeared to you to have been almost coached". Indeed Lau was not even cross-examined on the allegation of coaching. In all the circumstances, the judge was perfectly entitled to tell the jury that there being no evidence that the police had coached Lau or had helped him to concoct a story, the jury could put the matter from their minds. This ground of appeal therefore also fails.

7. Mr. McCoy's third complaint is Lau's dock identification of the applicant. This issue was dealt with clearly by the judge in his summing up, and he alerted the jury to the ambiguity in the evidence as to whether or not Lau was identifying someone he already knew. We find nothing in the third ground of appeal.

8. Nor is there, in our judgment, anything in the fourth ground of appeal.

9. The unsatisfactory nature of Lau's evidence was put to the jury in some detail by the judge in his summing up. He told the jury to treat Lau's evidence with the utmost caution and suggested that it was dangerous to rely on his evidence which remained unsupported. He pointed out to the jury that Lau had a considerable criminal record, that he had had a triad connection, that he had been charged with the murder of the deceased and was acquitted when the Crown.offered no evidence against him, that he made inconsistent statements to the police, etc. Accepting that the judge had dealt fully with the unsatisfactory character of Lau's evidence, Mr. McCoy nevertheless maintains that no reasonable jury could have relied on it: the jury's verdict is "unreasonable, unsafe, unsatisfactory, depending as it did on the unreliable and contradictory evidence of Lau".

10. Whilst it must be admitted that Lau's evidence was unsatisfactory, we are unable to say the jury was wrong to rely on it. There was some evidence upon which the jury could say that the applicant was guilty of manslaughter. This was a question of fact for the jury to decide.In all the circumstances, the fifth ground of appeal must also fail.

11. We now come to the additional and last ground of appeal. The judge, having considered defence counsel's submission of no case to answer, in which all the weaknesses of Lau's evidence were discussed, nevertheless ruled that there was a case to answer. Upon consideration of Lau's evidence, we are unable to conclude that the judge's ruling was wrong. This last ground of appeal also fails.

12. Lastly, Mr. McCoy suggests that this Court might entertain a lurking doubt as to the safety of the jury's verdict. We must say we have no doubt that the verdict is both safe and satisfactory.

13. The application is accordingly refused.

Re sentence

14. The applicant also seeks leave to appeal against sentence.

15. His co-accused, who pleaded guilty to manslaughter, was sentenced to four years' imprisonment. The learned judge found that he had acted under Provocation Though he was armed with a wooden box, there was no evidence that he had actually inflicted any blows upon the deceased.

16. The applicant on the other hand pleaded not guilty. Though he had pleaded not guilty, his plea was not unreasonable in the light of the unsatisfactory nature of the evidence of the key prosecution witness Lau, to which the judge made several references in his summing up. In sentencing this applicant the judge adopted a starting point of eight years.

17. There is in our judgment hardly any difference in the culpability between the applicant and his co-accused. If a sentence of four years' imprisonment were correct where a plea of guilty had been entered, then five years would be the proper sentence on a plea of not guilty.

18. In the circumstances, we allow the application, treat the application as the appeal and allow the appeal to the extent that the sentence of six years is reduced to five years.